Within Alice, practitioner clarity mitigates the case

It is easy for AI claims to appear abstract if they are focused on information-based result with no grounding in “how” or specific comparison to prior methods, which would reasonably invoke the preemption concern to fundamental principles and tools. After all, just like Morse’s famous eighth claim back in 1850s was not allowed to block all future long-distance communication technologies using electromagnetic current,98 Electric Power Group’s claims today should not block other innovative methods including other AI systems to collect data from multiple sources, analyze them and return results real time. The same logic applies to most AI systems that perform data collection, analysis, and result display in healthcare screening, medical diagnosis, fraud detection, security event detection, autonomous driving, and more. Therefore, it is key for AI-related claims to avoid broad and information-based result-focused language, and instead specify the tangible mechanisms utilized in a particular system including any physical component, such as innovative use of sensors, innovative algorithm and any quantifiable benefits in terms of efficiency, accuracy and scalability that are not only advantageous over prior art but also beyond human capability.

V. CONCLUSION

The Supreme Court’s 2014 Alice decision relying on an undefined term “abstract idea” has created much chaos and uncertainty in the U.S. patent system, especially in the world of software inventions. Artificial intelligence inventions, sharing many of the common underlying characteristics with software, unfortunately are not immune.

Before either the Congress reforms the patent statute or the Supreme Court takes upon itself to provide the much-needed clarity to the post-Alice Section 101 subject matter analysis, Alice is still the current law. Having to continue to live with Alice for the time being, patent practitioners need to recognize the preemption concern, and the related distinction between patent-ineligible fundamental principles and their practical applications that remains patent eligible, that the Courts have consistently emphasized across all three judicial exceptions. Recognizing this underlying concern, another objective of this article is to extract and summarize some practical ways to increase the chance of surviving Alice, based on the Courts’ specific considerations from several key precedents. These strategies include, without being exclusive: clearly stating a technological problem in the arts and explaining the mechanism of how the invention provides a tangible solution; pinpointing the specific improvement(s) to the functionality of a computer or network, such as the Internet; and recitation of special-purpose physical things as an integral part of an AI system, such as special-purpose sensors and smart Internet of Things.